[2022] KEHC 1434 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 420 OF 2010

LINCOLN NJERU.......................................................................1ST PLAINTIFF

SAMUEL NZIOKI......................................................................2ND PLAINTIFF

-VERSUS-

THE HON. ATTORNEY GENERAL......................................1ST DEFENDANT

MWALIMU CO-OPERATIVE SAVINGS AND

CREDIT SOCIETY LIMITED................................................2ND DEFENDANT

JUDGMENT

1. The 1st and 2nd plaintiffs in the present instance filed the plaint dated 6th September, 2010 and sought for judgment against the 1st and 2nd defendants in the following manner:

(a)General damages.

(b)Costs of the suit plus interest.

(c)Any other relief that the Honourable Court may deem just to award in the circumstances.

2. The plaintiffs pleaded in their plaint that they were at all material times employees of the 2nd defendant.

3. The plaintiffs also pleaded in their plaint that on 20th February, 2010 the 2nd defendant wrongfully directed the Criminal Investigation Officers based at the Anti-Banking Fraud Unit based in Nairobi to arrest and charge the plaintiffs with stealing from the 2nd defendant.

4. It was pleaded by the plaintiffs that they were later arraigned in court to answer to their charges and face prosecution on the same, and which prosecution ended in their acquittal on 9th September, 2010.

5. According to the plaintiffs, their arrest; charge and prosecution was therefore malicious and wrongful, and hence both the 1st and 2nd defendants ought to be held liable under the tort of malicious prosecution.

6. Upon service of summons, the 1st and 2nd defendants entered appearance and put in their statements of defence separately to deny the averments made in the plaint.

7. At the hearing of the suit, the plaintiffs testified whereas the 2nd defendant called one (1) witness. The 1st defendant closed its case without calling any witnesses.

8. The 1st plaintiff adopted his signed witness statement as evidence-in-chief together with their list and bundle of documents as exhibits. He stated that he worked for the 2nd defendant at all material times in the position of Accounts Assistant.

9. In cross-examination, the 1st plaintiff stated that on the material day, he received a cheque from a customer and issued the said customer with a receipt, but that later on, it turned out that he was suspected of fraudulent involvement.

10. The 1st plaintiff gave evidence that internal investigations were carried out by the 2nd defendant before he was interdicted. That the 2nd defendant through its agent/employee lodged a complaint with the police which led to his arrest and consequent criminal case against him and his counterparts.

11. It was the evidence of the 1st plaintiff that as a result of the arrest and prosecution, his mental health has suffered a blow and he has been unable to secure a stable job.

12. He added that he blames the police for arresting him without carrying out proper investigations and without taking his statement first.

13. The 1st plaintiff stated that the cheque in question was credited to one Jonathan Kamau and that he did not benefit from the funds drawn in the cheque.

14. The 1st plaintiff testified that the 2nd defendant ought to have given him a chance to explain himself in light of the allegations but did not, and that he was suspended for a period of six (6) months before being arraigned in court.

15. He went on to state that he was invited by the 2nd defendant to attend a hearing at the offices close to two (2) years following his suspension.

16. It is the testimony of the 1st plaintiff that John Kamau, who was their co-accused in the criminal case, was convicted in relation to one of the charges.

17. It is also the testimony of the 1st plaintiff that following his arrest and prosecution, he was a mental patient at Mathare.

18. In re-examination, the 1st plaintiff gave evidence that though he was arrested following the complaint made by the 2nd defendant, he was acquitted under Section 210 of the Criminal Procedure Code.

19. The 2nd plaintiff similarly adopted his executed witness statement as evidence and stated in his evidence that he was an employee of the 2nd defendant.

20. In cross-examination, the 2nd plaintiff stated that he also worked as an Accounts Assistant and would therefore receive cash and write cheques. He went on to state that it is not true that he received the sum of Kshs.2,000,000/= from the account of one Rose Wanjiru.

21. It was the testimony of the 2nd plaintiff that the complaint with the police was lodged by the 2nd defendant and that he recorded a statement with the police.

22. Like his counterpart, the 2nd plaintiff testified that on the date of his arrest, he was called to the 2nd defendant’s offices by one Mrs. Kongo, where they were then arrested.

23. In re-examination, the 2nd plaintiff stated that he was charged in court at the behest of the 2nd defendant and eventually acquitted under Section 210 of the Criminal Procedure Code.

24. Robinson Otieno who was DW1 adopted his signed witness statement as part of his evidence in chief and relied on the documents produced as D. Exhibits 1-16.

25. The witness stated that the 2nd defendant reported the material incident relating to the plaintiffs, to the Anti-Banking Fraud Unit of the police since the 2nd defendant had lost the sum of Kshs.2,000,000/= from one of its client’s accounts.

26. The witness also stated that there was no malice on the part of the 2nd defendant.

27. In cross-examination, he gave evidence that the plaintiffs both worked as cashiers for the 2nd defendant and would therefore receive cash from customers on a regular basis.

28. The witness further gave evidence that it is the 2nd defendant who invited the plaintiffs for a disciplinary hearing.

29. In re-examination, it was the brief evidence of the witness that the 2nd defendant was not involved in the prosecution of the plaintiffs herein.

30. Upon close of the hearing, the parties put in their respective submissions.

31. On their part, the plaintiffs contend that they are satisfied the ingredients of malicious prosecution have been proved as laid out in the case of Kasio Matuku & Kenya Post Office Savings Bank v James Kipkemboi Cheruiyot; Inspector General of Police & Attorney General (Interested Parties) [2019] eKLR thus:

“In action of malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the claimant. Evidence of malice of whatever degree cannot be invoked to dispense with or diminish the need to establish separately each of the first three elements of the tort.”

32. The plaintiffs further contend that the 2nd defendant acted with malice by terminating their employment even after they were acquitted of the criminal charges.

33. It is the submission by the plaintiffs that an award of Kshs.2,000,000/= would be reasonable compensation on general damages for each of them, taking into account their wrongful arrest and prosecution, and the mental anguish that resulted therefrom. They have cited the case of George Ngige Njoroge v Attorney General [2018] eKLR where the court awarded the sums of Kshs.1,000,000/= and Kshs.3,000,000/= on damages for malicious prosecution and pain and suffering as a result of torture and inhuman treatment, respectively.

34. In retort, the 1st defendant submits that the arrest and prosecution of the plaintiffs was done in light with the statutory duties bestowed upon the police and on the basis of a cognizable offence of conspiracy to commit a felony contrary to Section 393 of the Penal Code.

35. The 1st defendant also submits that while it is not in dispute that the criminal proceedings terminated in favor of the plaintiffs, this would not in itself justify a claim for malicious prosecution, borrowing from the case of Robert Okeri Ombeka v Central Bank of Kenya [2015] eKLRwhere the court held that:

“Comparative judicial experience in other jurisdictions also shows an emerging legal principle that an acquittal or discharge in a criminal prosecution should not necessarily lead to a cause of action in malicious prosecution law suits.”

36. It is the submission by the 1st defendant that the police took the statements by the plaintiffs and carried out proper investigations before choosing to prefer criminal charges against them, and that at the trial, a total of 14 witnesses were summoned to testify against the plaintiffs which is an indication that there were sufficient and probable grounds for prosecuting them.

37. It is also the submission by the 1st defendant that the complaint lodged by the 2nd defendant was sufficient cause to warrant the arrest of the plaintiffs.

38. The 1st defendant contends that the plaintiffs have failed to show that their prosecution was actuated by malice.

39. On damages, the 1st defendant submits that the plaintiffs are not entitled to an award of damages in the absence of proving their claim for malicious prosecution against it. The 1st defendant also submits that the plaintiffs are equally not entitled to costs of the suit.

40. On the part of the 2nd defendant, it is submitted that while the plaintiffs have proved the first and second ingredients for malicious prosecution: namely that the prosecution was initiated by the police following a report made by itself and that the criminal process terminated in their favour, they have not demonstrated that their prosecution was actuated by malice or undertaken without any probable or reasonable cause. The 2nd defendant cites the case of Darn Otieno v Stanbic Bank Kenya Limited [2012] eKLRin which the court held that a plaintiff ought to prove that malice was instigated by the defendant in question.

41. It is also submitted that in any case, the 2nd defendant had grounds for reporting the matter to the police since there was suspicion of commission of a criminal offence by the plaintiffs.

42. The 2nd defendant concluded its submissions with the argument that the suit is incurably defective for misjoinder since the plaintiffs improperly enjoined it in the suit while it is apparent that their arrest and prosecution was instigated by different parties. In the end, the 2nd defendant urges this court to dismiss the suit with costs.

43. I have considered the respective submissions alongside the authorities relied upon and the evidence tendered at the trial.

44. I will first address the preliminary issue which was notably raised in the submissions by the 2nd defendant, on misjoinder.

45. Upon my perusal of the record, I observed that the above issue was only raised at the final submission stage and was never brought to question at the trial of the suit or in the pleadings filed on behalf of the 2nd respondent.

46. It is trite law that submissions do not constitute pleadings or evidence. Furthermore, I am of the view that the issue of misjoinder having been raised too late in the day cannot be considered at this stage. I will therefore delve into the merits of the case.

47. The key issues for determination therefore are as follows:

(i) Whether the plaintiff has made a case for malicious prosecution against the defendants; and

(ii) Whether the plaintiff is entitled to the reliefs sought.

48. In respect to the first issue above, the term ‘malicious prosecution’ was well defined by the court in Stephen Gachau Githaiga & another v Attorney General [2015] eKLRcited in the respective submissions by the plaintiffs and the 1st defendant and whose definition I choose to borrow from as follows:

“Malicious prosecution is an action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without Probable Cause and for a purpose other than that of bringing the alleged offender to justice…Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution.”

49. Further to the foregoing, the elements to be established for a claim of malicious prosecution succeed were articulated in the case of Kagane v Attorney General (1969) EA 643as cited by the court in Kenya Power & Lighting Co Ltd v Maurice Otieno Odeyo & 2 others [2017] eKLRas hereunder:

“a) The plaintiff must show that the prosecution was instituted by the defendant; or by someone for whose acts he is responsible;

b) That the prosecution terminated in the plaintiff's favour;

c) That the prosecution was instituted without reasonable and probable cause; and

d) That the prosecution was actuated by malice.”

50. It is therefore incumbent upon the plaintiffs to establish the presence of the above ingredients collectively in order for them to succeed on their claim.

51. On the first ingredient, it is not in dispute that the arrest and prosecution of the plaintiffs were instigated by the police and the prosecution who represent the State in the criminal process. Furthermore, the law sets out that the Attorney General, being the 1st defendant in this instance, shall represent the State in civil proceedings. Resultantly, the first principle has been established in respect to the 1st defendant.

52. Concerning the second ingredient, upon my perusal of copies of the criminal court ruling and judgment in Criminal Case No. 313 of 2007 before the Chief Magistrate’s Court at Nairobi, it is evident that the criminal proceedings terminated in favour of the plaintiffs by way of an acquittal under Section 210 of the Criminal Procedure Code. There is therefore no contention that this ingredient has been proved.

53. The third ingredient touches on the subject of probable/ reasonable cause.

54. I appreciate that the burden of proving the absence of probable cause ultimately lies with the plaintiffs. In the case of Kagane v Attorney General(supra) the court sought to define what constitutes reasonable or probable cause:

“Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed…”

55. It therefore follows that relevant material and facts ought to be clearly set out prior to the institution of a criminal case and which material and facts would lead any prudent person; including the police and subsequently, the prosecution; to the belief that the person charged is guilty of the offence.

56. Upon my examination of the evidence tendered, I note that while it is not in dispute that the police arrested and subsequently instigated the prosecution of the plaintiffs subsequent to the complaint lodged by the 2nd defendant, the evidence of 14 witnesses were tendered in support of the criminal preferred against the plaintiffs and co-accused. The plaintiffs were acquitted under Section 210 of the Criminal Procedure Code. The plaintiffs’ co-accused namely Edward Mwangi Ng’ang’a alias Jothan J. Kamau Kahihu was at the end of the trial convicted and sentenced to serve three (3) probation.

57. It is apparent that the evidence tendered did not establish the case against the plaintiff beyond reasonable doubt.

58. The question to be determined is whether the plaintiffs have shown the absence of reasonable and probable cause for their prosecution, on the part of the defendants? The plaintiffs produced copies of the ruling in which they were acquitted. They also produced a copy of the judgment where their co-accused was convicted and sentenced.

59. In the judgment, the trial magistrate in the criminal case noted that the prosecution summoned the evidence of 14 witnesses. It is also pointed out that a sum of ksh.2 million was removed from the account of Rose Wanjiru Ngure and cheques issued in her favour each of kshs.500,000/=. It is noted that the transaction was done by the plaintiffs.

60. It is clear in my mind that there was a reasonable and probable cause to have the plaintiffs and the co-accused charged. I find no malice on the part of the defendants. In sum, there was a proper cause to prosecute the plaintiffs. I find no merit in the plaintiffs’ suit. the same is dismissed with costs to the defendant.

61. Assuming that the plaintiffs had proved their claim, I would have given the following awards;

(a) General damages for malicious prosecution:

62. Under this head, I considered the proposal made by the plaintiffs while noting that the defendants did not offer any suggestions.

63. Upon taking into consideration the proposition made by the plaintiffs coupled with the authorities relied upon and which I find to be comparable in the circumstances, I also considered the award of Kshs.2,000,000/= made on general damages for malicious prosecution in the case of Daniel Njuguna Muchiri v Barclays Bank Of Kenya Ltd & another [2016] eKLR and the case of Joseph Wamoto Karani v C. Dorman Limited & another [2018] eKLRrespectively.

64. Taking the above into account as well as the circumstances of the present case and inflation, I find the sum of Kshs.1,500,000/= to be a reasonable award under this head for each of the plaintiffs.

(b) Damages for pain, suffering and/or mental anguish:

65. Upon my study of the record, I am of the view that the 1st plaintiff has shown by way of credible evidence the manner in which he was negatively affected following his arrest and prosecution so as to warrant an award under this head, particularly at a psychological level.

66. Upon taking into account the proposed sum and authorities cited, I find the same to constitute a higher award than what would suit the circumstances of this case.

67. I therefore considered an earlier decision by this court in the case of Dadho Gaddae Godhana v Principal Secretary-Ministry of Interior and Coordination of National Government & 2 others [2019] eKLR where it awarded the sum of Kshs.500,000/= under this head. I will therefore award a similar sum under this head.

68. I however find that the 2nd plaintiff has not supported his claim for damages under this head by way of credible evidence and I therefore decline to make any award here.

69. In the end therefore, if the plaintiffs had proved their case, judgment would have been entered in their favour and against the defendants as follows:

(i) For the 1st Plaintiff-

a) General damages for

malicious prosecution Kshs.1,500,000/=

b) Damages for mental anguish Kshs.500,000/=

Total Kshs.2,000,000/=

(ii) For the 2nd Plaintiff-

a) General damages for

malicious prosecution Kshs.1,500,000/=

b) Damages for mental anguish NIL

Total Kshs.1,500,000/=

The plaintiffs would have costs of the suit plus interest on the proposed general damages at court rates from the date of judgment until the date of payment in full.

In the end, the suit is dismissed with costs to the defendants.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF MARCH, 2022.

............................

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Plaintiff

……………………………. for the 1st Defendant

……………………………. for the 2nd Defendant